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Browsing: Legal Papers of John Adams, Volume 2
Editorial Note
Colonial forests were a natural resource upon which Britain depended for a vital element in her naval strength. The towering white pines which had grown untouched in the woods of northern New England for centuries were unequaled throughout the world as mast timber. Moreover, the supply from this source did not depend upon the vicissitudes of foreign trade or war and peace. The royal mast contractors met severe competition, however, because these same mighty trees were attractive to the colonists both for maritime uses and for the humbler purposes of the settler. To protect the forests from local depredations, the British developed a statutory conservation scheme, enforced in the Vice Admiralty Courts, which led to a running battle with the colonists through most of the 18th century.1
The basis of the scheme was the Massachusetts Charter of 1691, which combined the former colonies of Plymouth, Massachusetts Bay, Maine, Nova Scotia, and certain lands lying between the latter two, into a single province. In the Charter “all Trees of the Diameter of Twenty Four Inches and upwards of Twelve Inches from the ground” growing on land “not heretofore granted to any private persons” were reserved to the Crown, to be cut only by royal license; a penalty of £100 for each tree cut without license was established.2 To implement this provision a system of licensing certain royal mast contractors was established, and a Surveyor General of the Woods was appointed to oversee their operations and to put down unlicensed activity.3 After a series of only partly successful enforcement attempts, Parliament in 1711 embodied the Charter language in the
{p. 248}
first of the White Pine Acts, which provided that no “white or other pine tree” meeting the Charter qualifications should be cut in any province or colony north of New Jersey. Penalties in the amount set in the Charter were to be sued for before the nearest justice of the peace and to be divided equally between the Crown and the informer.4
These provisions produced more controversy than conservation. The popular faction in the Massachusetts House, led by Dr. Elisha Cooke, a lifelong opponent of royal authority, denied that the Charter and Act bound the unincorporated Province lands in the timber-rich Gorges patent in Maine, claiming that the royal grant of this tract to Sir Ferdinando Gorges in 1639 brought it within the exception for lands granted to private persons.5 In 1718 Counsel for the Board of Trade held that the conveyance of these lands from the Gorges interests to the Massachusetts Bay Colony in 1678 and the vacation of the colony charter in 1684 revested the lands in the Crown and took them out of the exception.6 The focus then shifted
{p. 249}
to the trees themselves. In 1721 the House claimed and exercised the power to seize for the Province logs that had been cut into twenty-foot lengths. The justification advanced by Cooke was that the Charter reserved only timber fit for use as masts. This stand was the basis of one of the charges of usurpation of the prerogative which Governor Shute successfully prosecuted against the House before the Privy Council in 1725.7
The Act of 1711 also proved inadequate in its enforcement provisions. Jurisdiction of offenses under it had been given to justices of the peace
{p. 250}
to avoid the hazards of jury trial, but the local interests of the justices made them of little more value than juries in obtaining convictions of violators.8 There were other impediments to prosecution: The Crown bore the burden of proving that trees had been cut on reserved land;9 the rigid and complicated common-law process, which was under the control of reluctant local courts and sheriffs made it difficult to obtain execution when penalties were awarded;10 there was no express authority for the in rem seizure and forfeiture of trees felled within the prohibited areas.11
The Naval Stores Act of 1722, which was the basis of enforcement until the Revolution, sought to deal with all of these problems. It repealed the Act of 1711 and replaced its provisions with a prohibition against the unlicensed cutting of “any white pine trees, not growing within any township,” in the colonies from New Jersey north, with penalties varying in amount according to the size of the tree. The bulk of the Gorges tract, being unincorporated, was thus covered, whatever the state of the title.12 The problem of locally oriented courts was solved by a provision that the penalties were to be recovered “before the judge of the admiralty, or his deputy, within the colony or plantation where such pinetree shall be
{p. 251}
cut.”13 Other complaints about the judicial process were remedied by placing the burden of proof of the trees' location upon the claimant and by providing stringent measures for execution by distress and sale.14 To meet the contention that cut logs were not Crown property and to end the difficulties experienced in enforcing seizures, the statute further provided that all illegally-cut “white pine-trees, masts or logs made from such trees,” should “be forfeited and seized for the use of his Majesty.”15
{p. 252}
It was soon argued that the Act of 1722 had rendered void the Charter reservation. The Crown law officers ruled that the reservation was still in force, but repeal of the Act of 1711 meant that, except in Massachusetts, trees of the reserved size were protected only if they grew outside township bounds. Within Massachusetts the Charter covered trees in the towns, but its enforcement was again at the mercy of common-law juries.16 These loopholes were closed by the Act of 1729, which provided that in all of the American colonies no white pine trees should be felled (except by licensed cutters) even within a township's bounds unless they were “the property of private persons,” and that in Massachusetts white pines within the Charter reservation should not be cut unless they were on lands granted to private persons before 1690. The penalties and recovery machinery of the 1722 statute were to be applicable to violations.17
The construction which the Crown gave to the rules applicable in the Province of Massachusetts may be summarized as follows: (1) White pine trees of the size reserved in the Charter could not be cut without license unless they grew (a) within a township at the time of cutting, and (b) on land granted to private persons before 1690. (2) White pine trees of lesser size could not be cut without license unless at the time of cutting they were (a) within a township, and (b) the property of private persons.18 Until the Revolution this scheme was criticized as bad conservation and commercial policy, as well as an unjust taking of property without compensation. It was also attacked before the courts. Despite the best efforts
{p. 253}
of men seriously interested in a sound forest policy, the attacks on policy grounds brought no change. The court battles provided a constant accompaniment to sporadic efforts at strict enforcement.19
These efforts and resultant opposition, legal and otherwise, continued steadily until 1743 when Benning Wentworth, Governor of New Hampshire, succeeded in becoming Surveyor General of the Woods, a fitting appointment, since the mast contract for the northern woods was also in the Wentworth family. Enforcement now subsided, perhaps because the wide-ranging family timber interests were able by different means to satisfy the demand for naval stores as well as for commercial lumber.20 Apparently moved both by new demands for enforcement from the Crown and by the encroachment of commercial rivals on the family preserve, Wentworth in 1763 suddenly began to enforce the Acts in a series of suits for logs brought in the Admiralty Court at Boston. These suits continued until his resignation, in 1766, as Governor of New Hampshire and as Surveyor.21
John Wentworth, nephew of Benning, and successor to both his titles, brought to his new positions a desire to enforce the laws and an enthusiastic interest in the welfare of his native New England. He was in office until the Revolution, and was always active in the surveying phase of his commission, which required him to locate trees suitable for masts and to mark them with the King's broad arrow. He also worked continually to remove colonial objections to the laws.22 From the beginning, however, he was engaged in the task of enforcement. In July 1767 and again in September he brought libels in the Vice Admiralty Court at Boston for the forfeiture of illegally cut logs and masts which he had seized.23 Thereafter he was not a suitor in that court until April 1769, although he may have brought
{p. 254}
forfeiture actions in the Portsmouth Admiralty Court, held by William Parker, deputy of Robert Auchmuty, Judge of Admiralty at Boston.
In the spring of 1769 Wentworth was about to proceed in the Portsmouth court when Auchmuty suspended Parker from office; Wentworth therefore turned again to Boston. In a letter of 10 April he sent several “informations” against violators to Joshua Loring Jr., one of his deputy surveyors general, with directions to put them in suit before Auchmuty. (No. 54, Document III). At about the same time, John Hurd, one of the Governor's staff, forwarded other informations that had already been “under Consideration of Mr. Parker.” (No. 54, Document I). In his letter to Loring, Wentworth suggested that his old friend and Harvard classmate, John Adams, be retained to prosecute the suits. Wentworth spoke warmly of Adams and their somewhat neglected friendship, and ordered that Loring “Present the Lawyer rather a generous fee.”
Wentworth's letter may represent one of the influences which were brought to bear on Adams at about this time in an effort to draw him to the side of government.24 Adams, however, seems to have proceeded in the case more out of pleasant regard for his old companion (and perhaps for the “generous fee”) than from any conscious political motive. On 24 April he wrote Wentworth, reporting on his progress in drawing several libels, and asking for information necessary to complete others. (No. 54, Document IV). The letter concludes with a personal message, briefly reminiscent of the baroque style of Adams' youthful correspondence, which seems to express a longing for the freedom and innocence of their old friendship, while recognizing that in present circumstances it could never again exist.
Whatever his motive, Adams drafted an information praying forfeiture of 606 logs and nine masts seized by Wentworth in various locations in York and Cumberland Counties, Maine. (No. 54, Document II). Although Adams' draft is dated 20 April, the libel was filed on 1 May, and claimants were cited to appear on the 24th. The logs and masts were decreed forfeit on 1 June, apparently without a claim's being filed.25
In the months before and after the forfeiture, twenty in personam actions, some of them involving several respondents, were entered in the Court of Vice Admiralty on Wentworth's behalf. The Minute Book of the court shows that Adams filed three of these on 4 September 1769; penalties of £50 to £100 were decreed against the respondents upon their default on 20 November.26 Fifteen years later, in describing the White Pine Acts to the Maréchal de Castries, the French Minister of Marine, Adams wrote that at Wentworth's request he had “commenced and prose•
{p. 255}
cuted a great number of libels in the court of admiralty at Boston against transgressions of those acts of parliament.”27 This statement and Adams' letter to Wentworth indicate that Adams was responsible for most, if not all, of the remainder of the twenty suits as well.28 The Minute Book shows that, in addition to the three defaults, forfeitures were decreed in only two other actions. Of the rest, two were settled, one was dismissed, and in twelve the respondents were not served.
After 1769 Wentworth's enforcement activities seemed to subside, at least as they were reflected in Admiralty actions at Boston. Perhaps he was trying to encourage compliance through persuasion and negotiation, rather than by legal process.29 His dealings with the Kennebec Company which preceded his action against logs found on the lands which it claimed in Maine (No. 55) suggest an effort to reach an understanding.
In the summer of 1769, the Company, one of Adams' most important clients, had won three significant actions against other claimants to that famous tract, the Kennebec Purchase.30 Perhaps encouraged, the Proprietors, all of whom were important figures in the Boston financial community, wrote to Wentworth on 16 October 1769, asserting their claim to the Kennebec lands, and protesting the entry thereon of the royal mast contractors, but expressing a willingness to furnish masts to the Crown on their own terms. Wentworth replied that he could not decide the validity of their title himself, but that he was as eager as they were to have a correct determination of it. He offered either to bring an action in Admiralty that would decide the question, or to transmit to England a state of the Proprietors' claim for a ruling. Although he could not “relinquish the Royal Claim either in honor or Justice,” he would in the meantime “endeavor to prevent tho' I have no power to refuse the Cutting Masts on the premises.”31 The Proprietors apparently hoped to avoid either variety of determination, perhaps relying on their social acquaintance with Wentworth to produce a favorable result. They thus wrote to him in May 1770, sug•
{p. 256}
gesting that he submit the question to counsel for an opinion. Wentworth refused to be trapped, pointing out in reply that his position was based on the opinion given on Cooke's claims in 1718, to which he must conform, and that the question was beyond his competence. He renewed his offer to forward the Company's state of its claim, however.32
About a year later, Richard Jackson, counsel for the Board of Trade, was asked to decide the matter on the basis of a letter from Wentworth, stating the Kennebec claim. Jackson refused to decide the question of title involved, but stated that if the trees in question grew within a township, and if the claim of the Kennebec Company to a title derived prior to 1690 were established, the trees could be cut without penalty.33 The Proprietors were still reluctant to submit their title to the courts, however, probably fearing the effect of an adverse determination on other claims which might be brought for the lands. In December 1771 they petitioned the Admiralty and Treasury, not for complete relief, but for compensation for logs taken from their lands, stating that they wished to avoid litigation, “the entering into a Law Suit having the appearance of refusing the Masts for His Majesty's service.” Wentworth himself recommended this solution to the Treasury, “not as a matter of right, but as a Gratuity for the Timber being found well preserved upon their Land.”34 The petition, which had not been acted upon by the fall of 1772,35 was probably tabled, because the question was finally submitted to litigation.
Perhaps expecting efforts at settlement to fail, the Proprietors had already begun to prepare for litigation. At a meeting on 8 January 1772, James Bowdoin, James Pitts, Sylvester Gardiner, Benjamin Hallowell, and
{p. 257}
William Bowdoin were constituted “lawful attorneys,” who were empowered, among other things, “to appear, and the Person of us said Proprietors Constituant to represent before any Governor, Judges, Justices, Officers and Ministers of the Law whatsoever, in any Court or Courts whatsoever, and there on our behalf to answer, defend, and reply unto all Actions, Matters and things whatsoever,” with power to appoint attorneys under them. Since the previous grant of such a power to a committee had authorized only the appointment of an “Attorney for the proprietors to appear for them in any Courts of Law or Equity in New England or Great Britain,” the 1772 vote indicates an awareness that the controversy with Wentworth would be tried in Admiralty. At the same meeting Adams, who had been acting for the Company since 1769, was formally voted “Attorney in all Causes, Real, personal, or Mixt, moved and to be moved for us or against us.”36
On 14 July 1772 an information was filed in the Court of Admiralty at Boston against a total of 573 logs, 424 pieces of hewn timber and 70,000 feet of pine board, alleged to have been seized on the Kennebec River and at various locations within the claimed lands to either side of it.37 The action seemed calculated to produce a determination both of the Kennebec claim and of the question whether the statutes applied to dressed timber (other than masts) and sawn boards, as well as to trees, masts, and logs.38 Adams appeared for the Kennebec Company and filed a claim, which apparently asserted its title. The case was argued on what Adams in his minutes described as a “demurrer” (No. 55, Document II), but which in Admiralty practice is more properly known as an exception. The effect was that of a demurrer, however, which admitted all the facts as to the chain of title pleaded in the claim, leaving in issue only questions of law as to the validity of the title and the construction of the White Pine Acts.39
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The case was heard in March 1773. James Otis and Samuel Fitch, the Advocate General, argued for the Crown. Adams appeared for his old clients, undoubtedly with a colleague whose identity is not known. Printed below in No. 55 are a list of questions of law apparently drawn for the hearing (Document I), Adams' minutes of the Crown argument (Document II), and Adams' notes of his own argument (Document III).
The Kennebec Company traced its title back to the Council for New England, or Council of Plymouth, established in 1620 by a royal patent which conveyed to it all of New England from 40° to 48° North Latitude. In 1630 the Council had granted to William Bradford, moving spirit in the Plymouth Colony, the so-called Plymouth Patent, which conveyed both the lands which the Pilgrims had occupied in Massachusetts and a tract on either side of the Kennebec to be used for trading purposes. In 1641 Bradford had “surrendered” to the colony his interest and that of his associates in the patent. Plymouth sought to improve the Maine lands, leasing the trading rights there periodically and adding further tracts acquired by deed from the Indians. Finally in 1665 the colony conveyed the land to four individuals. The heirs and successors of these grantees organized in 1749 as “the Proprietors of the Kennebec Purchase from the late colony of New Plymouth,” an arrangement given legal sanction by a Province Act of 1753 permitting the proprietors of undivided lands lying outside of organized townships to act as a body.40
The basic position of the Proprietors was that the chain validated their title and that at least the conveyance out of the Plymouth colony in 1665 was a grant to private persons before 1690, within the meaning of the Charter and statutes. Otis and Fitch attacked the Kennebec position along two lines: First, that the grants were made not to “private persons,” but to corporate bodies or to tenants in common of undivided lands, who as proprietors held in a capacity other than private. Second, that the chain of title was defective, so that even if the grantees were private persons, they did not hold by virtue of a grant, but by adverse possession. Even if the Proprietors' arguments on these points prevailed, only trees growing within townships would be protected.41 Fitch argued that the 1722 act had been
{p. 259}
construed to mean that trees growing outside of township bounds were reserved, regardless of ownership. Adams met the argument with the proposition that the Charter excepted grants to private persons, regardless of township bounds, and that the exception was not narrowed by the Act of 1722, which was intended to apply only in other royal provinces in which all unincorporated lands of necessity belonged to the Crown.
Adams' arguments must have been successful, because on 3 May 1773 Wentworth's libel was dismissed. The Surveyor General appealed to the Privy Council, and in September 1774 his petition was referred to the Council's Committee for Hearing Appeals, which finally set the case for hearing on 3 August 1775.42 No record of the result has been found. If the petition was not withdrawn, the Order in Council resulting can have had little effect, since Boston was by the time of its issuance the besieged stronghold of the last vestiges of British authority in New England.
1. For an admirable treatment of the naval and economic considerations, and a summary of the 18th-century struggle, see Robert G. Albion, Forests and Sea Power 231–280 (Cambridge, Mass., 1926). The cutting and shipment of masts to England was further encouraged by the grant of bounties to importers, and the inclusion of masts and other naval stores in the list of “enumerated” colonial products that could be shipped only to an English or colonial port. The latter provision did not prevent the development of an illicit trade in these materials. Id. at 250–251, 264–265; see note 17 below.
2. Province Charter of 1691, 1 A&R 20, set out in pertinent part in No. 55, Doc. III, text and note
2
28
. England had relied on colonial masts through most of the 17th century, but the Charter of 1691 was the first formal effort at regulation. It seems to have resulted from a combination of pressures exerted by the commencement of hostilities with the French and a mercantilist desire to protect the English woolen industry by encouraging colonial initiatives in other directions. Albion, Forests and Sea Power 233–240. Compare Board of Trade to Governor Shute, 16 Aug. 1722,
Cal. State Papers (Col.), 1722–1723, §263. Although there was no enforcement provision in the Charter, actions under it were brought in the common-law courts. See materials cited in Albion, Forests and Sea Power 265 note; Usher to Secretary of State, 25 Nov. 1710, 9 Maine Hist. Soc., Colls.
(2d ser.) 305 (1907).
4. 9 Anne, c. 17, §1 (1711), set out in No. 55, Doc. III, at note
5
31
. For the enforcement efforts, see Albion, Forests and. Sea tower 242–249 and materials cited in note 2 above. An earlier statute had protected “pitch, pine trees, or tar trees, not being within any fence or actual inclosure, under the growth of twelve inches diameter, at three foot from the earth.” Penalties of £5 “for each offense” were to be sued for before the nearest justice of the peace, to be divided equally between Crown and informer. 3 & 4 Anne, c. 10, §6 (1704). The purpose of the latter act seems to have been to protect trees useful for naval stores such as tar, rather than mast trees. Albion, Forests and Sea Power 249. See Bridger to Board of Trade, 9 Maine Hist. Soc., Colls.
(2d ser.) 266, abstracted in
Cal. State Payers (Col), 1708–1709, §428. However, it did have the further effect of serving as a long-range conservation measure by assuring future growth of the great pines. The exception for trees within a fence or enclosure seems to have been intended to permit cutting for the purposes of clearing land for settlement only. Albion indicates that this limitation was continued in the White Pine Act of 1729, note 17 below. Id. at 258. It is probable, however, that the latter act, and that of 1721, note 13 below, which covered white pines of every size, and together limited unlicensed cutting to private property within township bounds, were considered to have repealed 3 & 4 Anne, c. 19, §6 sub silentio and not to embody its narrower limits. JA did not use its language in the information which he drafted for John Wentworth in 1769. No. 54, Doc. II.
5. The Gorges Patent, or Province of Maine, which ran from the New Hampshire border to the Kennebec River, had been conveyed by Gorges' heir through a straw to the Massachusetts Bay Colony in 1678. See the deeds in 2 Maine Hist. Soc., Colls.
(1st ser.) 257–264 (1847). As to the Gorges Patent, see No. 55, notes 6,
11
17
. The Massachusetts argument was that the Province title derived from the 1639 grant to Gorges through the title of the Bay Colony, which had allegedly been confirmed by another provision of the 1691 Charter (No. 55, note
16
22
). See “The right of Massachusetts to the Province of Maine, vindicated,” 9 Maine Hist. Soc., Colls.
(2d ser.) 388–414. Cooke had a personal interest in this phase of the struggle against the Crown, for he had bought up at least two grants of land made by the Bay Colony General Court before 1678 which had never been laid out, and had proceeded to lay them out as a large tract within the Gorges Patent, which the Province General Court confirmed. John Bridger to ———, 8 April 1720, 10 id. at 134–135; 2 Mass., House Jour.
24, 66–67. As to Cooke generally, see 4 Sibley-Shipton, Harvard Graduates
349–356; No. 5, note
5
14
.
6. The question reached the Board of Trade on the petition of John Bridger, Surveyor General of the Woods, whom Cooke had personally attacked as part of his campaign (note 5 above). The House had approved these strictures against Bridger in Dec. 1718, Cooke having spent the session on the sidelines as a result of the Governor's negative of his election to the Council. See Bridger to Board of Trade, 14 July 1718,
Cal. State Papers (Col.), 1717–1718, §616; 1 Mass., House Jour.
272; 2 id. at 3, 47, 52, 53, 108–109. By this time, however, Richard West's opinion, adopted by the Board of Trade, had destroyed the legal foundation of the Province arguments, since it meant that any conveyance of the Gorges lands from the Province General Court after 1691 could have been made only by virtue of a title derived from the 1691 Charter and must be subject to the reservation in that instrument. Opinion of Richard West, 12 Nov. 1718, Chalmers, Opinions
133–137;
Cal. State Papers (Col.), 1717–1718, §§744, 755. See generally, Albion, Forests and Sea Power 256–257; Knollenberg, Origin of the American Revolution
132–133. Knollenberg argues that on a strict construction of the Charter language, West's opinion is unsound; since the only requirement was that the lands have been granted previously to private persons, the subsequent history of the title was irrelevant. Ibid. West's ruling that the Bay Colony title was revested in the Crown in 1684 had some sanction in English corporate law, however, and it was supported by a decision of the Privy Council on Gorges' application in 1691. See 9 Holdsworth, History of English Law
67–68; 9 Maine Hist. Soc., Colls.
(2d ser.) 390–392;
Cal. State Papers (Col.), 1689–1692, §1677. The 1691 Charter confirmed titles under previous grants in language which limited the confirmation to grantees actually holding title at the time of the Charter, thus excluding the Bay Colony. See No. 55, note
16
22
. When the Charter's exception of lands previously granted to private persons is read with this confirmation clause, it would seem that the Crown could not have intended to save private rights in trees growing on lands to which it did not at the same time confirm the title. The problem raised by the Gorges patent is thus to be distinguished from the case of the Kennebec Company's claims, which were based on a title that had not revested in the Crown in 1684 and was thus confirmed in r6gi. See text and notes 33–41, below.
7. See generally, Albion, Forests and Sea Power 256–267. For the House action, see 2 Mass., House Jour.
362–366, 381, 383, 386, 388; 3 id. at 30–32, 42, 154, 159, 174, 186. For Cooke's justification, see 3 id. at 31–32, 40. See also 2 Hutchinson, Massachusetts Bay, ed. Mayo, 190–191. Shute's charges were the result of a struggle that had been going on between him and the House since his arrival in 1716. Cooke, who was involved in all of the questions, traveled to England to argue the case for the House. He tried to maintain that they had acted so as to preserve the King's rights, but he was confronted with the defiant resolutions of the House, and after an adverse report by the hearing officers, was forced to abandon this and several other points. He ultimately prevailed before the Privy Council on the questions whether the Governor had the power to negative him as Speaker of the House, and whether the House could adjourn without the Governor's consent. The Explanatory Charter of 1726 was a direct result of Cooke's activities. See
Cal. State Papers (Col.), 1722–1723, §§683, 704; id. 1724–1725, §346 1; 3
Acts, Privy Council (Col.) 94–95, 102–104; John Colman to Rev. Dr. Colman, 18 May 1724, 2 MHS, Colls.
, (1st ser.) 32 (2d edn., 1810); Boston Chronicle, 7–1 1 Jan. 1768, p. 33, cols. 1–3; 1 A&R 21–23.
8. For troubles with juries before 1711, see materials cited, note 2 above. For later instances, see
Cal. State Papers (Col.), 1720–1721, §118; id, 1722–1723, §132; id. 1728–1729, §118; 6
Acts, Privy Council (Col.) §399. The situation was further complicated in Massachusetts by the fact that there was an appeal as of right from the decision of a single justice to the Court of General Sessions, which sat with a jury, 1 A&R 368–369. This provision was presumably applicable even where jurisdiction was conferred by Parliament, in the absence of any expression to the contrary.
9. Surveyor General Bridger urged that “The owners [i.e. onus] probandi must be on the cutters,” after losing on a failure of proof.
Cal. State Papers (Col.), 1720–1721, §118; see id. §179 1. For similar but more conventional comments, see id. §§319, 352 11; 9 Maine Hist. Soc., Colls.
(2d ser.) 267.
10. For Bridger's difficulties with fraudulent conveyances, faulty returns, inadequate jails, and the like, see Bridger to Lords of Trade, 14 July 1718, 9 Maine Hist. Soc., Colls.
(2d ser.) 420; Bridger to Popple, 26 June 1719, 10 id. at 119—120 (1907).
11. Such seizures had been carried out at least as early as 1709, probably on the authority of the Surveyor General's commission or instructions, or perhaps by special warrant from the Admiralty. Logs so seized were apparently not forfeit without the approval of the Lords of Admiralty in England, however, which meant that difficult questions of fact and title had to be decided by a body far from the scene and unacquainted with local practice. As a result the chance of forfeiture was very uncertain, and the logs more than likely to rot where they lay before they could be condemned. See Bridger to Board of Trade, 27 March 1709, 9 Maine Hist. Soc., Colls.
(2d ser.) 268; same to same, 17 Aug. 1709, id. at 298; Bridger to Lord Dartmouth[?], 21 May 1711,
Cal. State Papers (Col.), 1710–1711, §846. Bridger to ———, 8 April 1720, 10 Maine Hist. Soc., Colls.
(2d ser.) 137. The common-law courts could also interfere by treating a seizure as an attachment in a suit for penalties and ordering delivery on failure of conviction. Ibid.;
Cal. State Papers (Col.), 1720–1721, §§57, 82, 118, 127, 179.
12. 8 Geo. 1, c. 12, §§5, 6 (1722), set out in No. 55, at notes
6–9
32–35
. The reservation of all trees outside township bounds was an idea of Bridger's directed specifically against Cooke's claims to unincorporated lands. Bridger to ———, 8 April 1720, 10 Maine Hist. Soc., Colls.
(2d ser.) 135–137.
13. 8 Geo. 1, c. 12, §. See No. 55, note
7
33
. See the materials cited, note 8 above. Little consideration seems to have been given to the legal basis for this extension of the Admiralty jurisdiction to an area that was geographically far from its usual purview. Objections were occasionally made in a political context. See
Cal. State Papers (Col.), 1722–1723, §4. However, no case has been found in which a plea to the jurisdiction was offered. See Wentworth v. Dean, Hough, Reports
227, 229, 233 note (N.Y. Vice Adm., 1769) (Respondent complained of “Hardship of the Prosecution in the Admiralty” and being held to bail; but no jurisdictional objection made). It may have been generally accepted that the Admiralty was a proper forum in which to litigate the King's right to royal property of a maritime nature, on an analogy to droits of Admiralty (great fish and other unclaimed objects cast up from the sea, which belonged to the Crown). The proceeds of the droits were granted to the Lord High Admiral and litigation concerning them was carried on in the Admiralty Courts. 1 Holdsworth, History of English Law
559–561. If this was the basis of the extension, the Crown interest must have been the chief justification, since ordinarily even today in delictual actions, some element of maritime location is usually necessary for jurisdiction. Grant Gilmore and Charles L. Black, The Law of Admiralty 18–30 (Brooklyn, 1957). There was also a clear administrative justification for the jurisdiction since the Lords of the Admiralty, who were the authority constituting the colonial Vice Admiralty Courts, had ultimate control of timber policy, having in fact previously supervised the process of seizure and forfeiture. See Albion, Forests and Sea Power 42–43; note 11 above. Although the in personam actions for penalties involved the same questions of title to royal property, colonial complaints about deprivation of the jury had more force here. They could be met, however, by the argument that in England countless such petty offenses were triable before justices of the peace, who sat without a jury, a practice which had doubtless been the model for the statute 9 Anne, c. 17 (note 4 above). See No. 46, note
26
103
.
14. 8 Geo. 1, c. 12, §5. As to burden of proof, see note 9 above. Problems concerning execution are covered, note 10 above. The act provided that if a convicted offender failed to pay the penalties assessed within twenty days, the judge was authorized to have the amounts due levied by distress and sale of the offender's goods (presumably through the office of Marshal of the Admiralty Court, rather than the sheriff), or to imprison him for three to twelve months. For this provision in action, see Wentworth v. Dean, Hough, Reports
227, 232–233 (N.Y. Vice Adm., 1769).
15. 8 Geo. 1, c. 12, §5. See No. 55, note
8
34
. For the problems concerning property in the logs and the enforcement of seizures, see notes 8, 11, above. The statute did not expressly provide that such seizures should be prosecuted in Admiralty, but no case has been found in which an objection to the jurisdiction based on the statutory language was made. It may have been felt that the Admiralty's right to the logs made the jurisdiction clear. See note 13 above. In any event, the grant of jurisdiction over penalties could be read to include seizures. 8 Geo. 1, c. 12, §5. It is also not clear how the forfeited logs were to be dealt with, once condemned. The statutory language, and that of JA's information, No. 54, Doc. II, indicate that the logs or their proceeds were to go solely to the Crown. See also Wentworth v. Dean, Hough, Reports
227 (N.Y. Vice Adm., 1769), where the action for penalties is entitled Wentworth qui tam v. Dean, but the action against the logs is entitled Our Lord The King v. Three White Pine Trees. After condemnation, if the timber had been cut into logs too short for masts, it might be sold, with the proceeds going to the Surveyor General for the Crown, subject to a charge for his expenses. See Benning Wentworth v. Logs, SF 157245 (Mass. Vice Adm., 1763); Mayo, “The King's Woods,” 54 MHS, Procs.
50, 54 (1920–1921); Bridger to Board of Trade, 27 March 1709, 9 Maine Hist. Soc., Colls.
(2d ser.) 268; same to same, 17 Aug. 1709, id. at 298. If the seized logs were fit for use as masts, at least in earlier practice they were taken in specie by the Crown. Ibid. That this remained the practice is suggested by the fact that no notices of sale appear in the Boston newspapers for John Went-worth's successful seizures in 1769–1772.
16. See Opinion of Francis Fane, 19 July 1726, Chalmers, Opinions
137;
Cal. State Papers (Col.), 1726–1727, §226; Opinion of Attorney General Yorke and Solicitor General Talbot, 23 Dec. 1726, Chalmers, Opinions
139;
Cal. State Papers (Col.), 1726–1727, §386. For the opposition to enforcement, including the necessity of a resort to common law, which these loopholes provoked, see id. 1724–1725, §§352, 771; id. 1726–1727, §§48, 172, 227, 290, 498; id. 1728–1729, §§627 1, 892 1, 1018; id. 1730, §§288, 402 ii. The problem was further aggravated by a sudden proliferation of new townships in the white pine country. See Albion, Forests and Sea Power 255–256;
Cal. State Papers (Col.), 1726–1727, §335.
17. 2 Geo. 2, c. 35, §§1, 2 (1729), set out by JA in No. 55, notes
12–17
38–43
. That the Act was the result of the problems in note 16 above, appears in
Cal. State Papers (Col.), 1726–1727, §§498, 771; id. 1728–1729, §§50, 118, 755. The statute also revived the system of bounties and enumeration enacted in 3 & 4 Anne, c. 10 (1705), which had lapsed in 1725. 2 Geo. 2, c. 35, §§3–17. See note 1 above.
18. Opinion of Richard Jackson, 5 June 1771, Chalmers, Opinions
157. In 1773 JA argued that the reservation of trees outside of township bounds was not meant to apply to Massachusetts. See No. 55, text at notes
10–11
36–37
.
19. For the failure of various well-intentioned efforts to change the colonial forest policy and the difficulties in enforcement, see Albion, Forests and Sea Power 258—269; Knollenberg, Origin of the American Revolution
130–131, 133–134.
20. Albion, Forests and Sea Power 253; Knollenberg, Origin of the American Revolution
134–135.
21. See Albion, Forests and Sea Power 253; Knollenberg, Origin of the American Revolution
135–137; Lawrence S. Mayo, John Wentworth 23–24, 47–51 (Cambridge, Mass., 1921). For instances of Benning Wentworth's activities in 1763 and after, see Wentworth v. Logs, SF 157245 (Mass. Vice Adm., 1763); Wentworth v. Loggs, Vice Adm. Min. Bk., 19 April 1766. See Governor Bernard's Proclamation, 9 July 1763, calling on all to aid the Surveyor General of the Woods. Book of Commissions, 1756–1767, fols. 339–340, M-Ar.
22. For Wentworth's role as Surveyor General, see Albion, Forests and Sea Power 253–254, 268–271; Mayo, John Wentworth 51–60. Born in 1737, he was a Harvard classmate of JA's, and a man of considerable education. He was one of the most sympathetic and effective colonial administrators, but remained loyal to the Crown at the Revolution. In 1782 he was reappointed Surveyor General of the Woods and took up residence in Nova Scotia, where he served as Lieutenant Governor from 1792 until 1808. He was knighted in 1795 and died in 1820. See generally, Mayo, John Wentworth.
23. Wentworth v. Loggs, Vice Adm. Min. Bk., 28 July 1767; Wentworth v. Masts and Bowsprit, id. 7 Sept. 1767. Wentworth did not arrive in Portsmouth to take up his duties until 13 June 1767. Mayo, John Wentworth 28–30.
25. Vice Adm. Min. Bk., 1 May 1769; Massachusetts Gazette, 11 May 1769, p. 2, col. 1.
26. Wentworth v. Noyes, Wentworth v. Frost, Wentworth v. Knight, Vice Adm. Min. Bk., 4 Sept. 1769.
27. JA to the Maréchal de Castries, 9 Dec. 1784, 8 JA, Works
216.
28. Wentworth was present in Boston during June 1769 as a member of the Special Court of Admiralty convened for Corbet's Case, in which JA was of counsel for the accused. See No. 56. An agreement for JA to take on more of the logs cases may have been made at this point.
29. For Wentworth's own account of a successful attempt at persuasion along the Androscoggin in the summer of 1769, see Mayo, John Wentworth 52–54. The best known of his prosecutions, Wentworth v. Dean, Hough, Reports
227, was tried and decided in the New York Court of Vice Admiralty during the fall of 1769. See Mayo, John Wentworth 56–61; Ubbelohde, Vice Admiralty Courts
177–178. See also notes 13–15 above.
30. See JA to AA, Falmouth, 1 July 1769, 1
Adams Family Correspondence
67. JA's notes of two of these cases, Bowdoin v. Springer and Gardiner v. Tyng, show that the opposing claims were based at least in part on the Gorges Patent (notes 5, 6, above). Adams Papers, Microfilms, Reel No. 185.
31. Wentworth to the Committee of the Kennebec Purchase, 19 Oct. 1769, PRO, Treas. 1:471, fols. 149–150. The Proprietors' letter is in 1 Kennebec Purchase Letter Book 26–27, MeHi. For another statement of their position, see James Bowdoin to Thomas Pownall, 29 Sept. 1772, 1 Bowdoin-Temple Papers (9 MHS, Colls.
, 6th ser.) 296 (1897).
32. Wentworth to the Committee of the Kennebec Purchase, 29 June 1770, PRO, Treas. 1:471, fol. 150. See the Proprietors' letter in 1 Kennebec Purchase Letter Book 35–36, MeHi. For the 1718 opinion, see note 6 above. The Proprietors had replied to Wentworth's earlier letter (note 31 above) by asserting their claim in fuller detail, threatening to prosecute the “mast men,” and pointing out that they should at least have compensation for their efforts and expenditures in opening the country. Proprietors to Wentworth, 8 Nov. 1769, 1 Kennebec Purchase Letter Book 27, MeHi.
33. Opinion of Richard Jackson, 23 May 1771, Chalmers, Opinions
155–156. See also Opinion of same, 5 June 1771, id. at 157–158.
34. For the petition to the Admiralty, 18 Dec. 1771, and letters requesting Wentworth, Governor Hutchinson, and Admiral Montagu to forward it, see 1 Kennebec Purchase Letter Book 55–72, MeHi. Wentworth's comment is quoted in Albion, Forests and Sea Power 258. In an earlier letter, commenting upon a proposal by Hutchinson that the General Court curb the unlicensed destruction of timber in Maine, James Bowdoin of the Proprietors had stated their wish to cooperate in providing masts, if their title was made clear. Bowdoin to Thomas Pownall, 12 Nov. 1770, 1 Bowdoin-Temple Papers 234. See notes 31, 32, above. See also 3 Hutchinson, Massachusetts Bay, ed. Mayo 244–245. Hutchinson's family had long been active in Maine land speculation under claims opposed to those of the Kennebec Company. See Malcolm Freiberg, Prelude to Purgatory 119 and notes (Brown Univ. doctoral dissertation, 1950); Remarks on the Plan and Extracts of Deeds Lately Published by the Proprietors of the Township of Brunswick 6–7 (Boston, 1753). Later Bowdoin wrote that the Company's motive for avoiding litigation was financial. Bowdoin to Pownall, 29 Sept. 1772, 1 Bowdoin-Temple Papers 295–296.
36. See the 1772 votes in 3 Kennebec Purchase Records 78–79, MeHi. The earlier power was granted on 19 Jan. 1764 to the same committee and Thomas Hancock. 2 id. at 341–342. JA's appointment seems to have been only a formal step, coincident with the withdrawal of William Cushing from the same post, which he had held since 1760. See id. at 255; Cushing's Account, Aug. 1761-Sept. 1771, Kennebec Purchase Waste Book 131–140, MeHi. Cushing was appointed to the Superior Court bench on 15 Jan. 1772. Whitmore, Mass. Civil List
70.
37. Massachusetts Gazette, 16 July 1772, p. 3, col. 2. In a letter of 22 July, the Proprietors asked Jonathan Bowman to find out whose were the logs mentioned in this notice and stated that if the owners would apply, the Company would defend for them. 1 Kennebec Purchase Letter Book 73, MeHi.
38. See Knollenberg, Origin of the American Revolution
131–132.
39. On 23 Oct. 1772 JA received a fee of £4 16s. “for his Appearing at the Court of Admiralty to claim Logs.” On 28 Nov. he received an additional £7 45. No other payments for this case have been found. See Accounts of Henry Alline, Kennebec Purchase Bills, Receipts, &c., MeHi. The term “exception” covers all preliminary objections including those in the nature of a demurrer. See 2 Browne, Civil Law
362. Despite JA's statement as to the effect of a demurrer here (No. 55, Doc. II), the Company obtained a Commission from the court to take depositions and obtain record copies at Plymouth in April 1773. Alline's Accounts, Kennebec Purchase Bills, Receipts, &c., MeHi.
40. For documentation of the title, see No. 55, notes 2, 3,
11
17
,
12
18
. For the history of the Kennebec Company see Gardiner, “History of the Kennebec Purchase,” 2 Maine Hist. Soc., Colls.
(1st ser.) 269–294 (1847); L. C. Wroth, “The Thomas Johnston Maps of the Kennebeck Purchase,” in Walter M. Whitehill, ed., In Tribute to Fred C. Anthoensen, Master Printer 77–107 (Portland, Maine, 1952); Philip C. Olsson, The Kennebec Purchase from the Colony of New Plymouth, 1749–1765 (Harvard Univ. B.A. Honors Paper, 1962). For the Proprietorship Act, see 3 A&R 669. See also 4 Dane, Abridgment
70–72.
41. At least six townships had been granted within the Kennebec Purchase before 1772; Pownalborough, 1760, 4 A&R 287; Bowdoinham, 1762, 4 A&R 600; Hallo-well, 1771, 5 A&R 129; Winthrop, 1771, 5 A&R 132; Vassalborough, 1771, 5 A&R 135; Winslow, 1771, 5 A&R 136. These grants had not been confirmed by the Crown, however, a Charter requirement for lands north and east of the Sagahadoc River, which arguably included Pownalborough, part of Hallowell, part of Vassalborough, and part of Winslow. See 3 Hutchinson, Massachusetts Bay, ed. Mayo 244–245; Bowdoin to Pownall, 29 Sept. 1772, 1 Bowdoin-Temple Papers 295; 1 A&R 18–19.
42. 5
Acts, Privy Council (Col.) §304. Robert Auchmuty, Judge of the Admiralty Court, had been of counsel to the Company in important land actions in the prior decade. In June and Dec. 1774 he received payments totaling £282 os. iad., apparently for these services. No objection seems to have been raised on this ground, however. See 2 Kennebec Purchase Records 422; Accounts of Henry Alline, Kennebec Purchase Bills, Receipts, &c., MeHi.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2007.
http://www.masshist.org/ff/
http://www.masshist.org/ff/